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The Kid Gets It

Well, not quite a kid, as Jim von der Heydt came to law school after having taught English at Phillips Exeter Academy (where rich parents rid themselves of their baby at their earliest opportunity). But now that he’s going into his third year of law school, a “rising” 3L as it’s now pretentiously called, he gets to be a kid again (and will therefore be called “the kid” hereinafter).

For some inexplicable reason, Dan Markel invited the kid to post at PrawfsBlawg about his experience as submissions editor at Cleveland State Law Review. Yes, apparently there is a law school called Cleveland State, and far be it for me to tell anyone in Ohio that Cleveland is not a state. The point of the kid’s posts are to advise scholars as to what he, as Lord of Submissions, thinks of their efforts. He began at the beginning, with cover letters, which he takes seriously despite common wisdom that nobody actually reads them.

From this ignominious start, the kid took a fascinating turn. His second post, Reaching the Merits, raises a fundamental, and often ignored, lesson for all lawyers, and most people:

To every issue there is a “threshold issue”; before any question is asked there are motions in limine; the countervailing facts are not yet ripe for consideration; can subject-matter jurisdiction be addressed before prudential standing, or do we even need to reach that question?

The post opens with a story about a woman who demands to speak with the lama in Tibet, with guard after guard, until she finally talks her way through. The punchline is:

There, in the holy of holies, adorned with wisps of emergent satori, is the lama.

“Sheldon,” she says. “Come home!”

The point of her quest is to tell Sheldon to come home. The point of the joke is that she has to find a way to go through all the guards to ask the question. Get it? The kid goes on to relate his tale to his argument about the relevance of cover letters, which is of no interest per se and so will be summarily ignored.

As criminal defense lawyers, our primary focus is the answer to the basic question, guilty or not. However, we ignore what it takes to get to that question at our peril. In reality, the journey to the merits is far more important in most cases than the answer to the question, as we rarely get to the bottom line of a jury verdict, and most cases are resolved along the way.

I hasten to expand upon the kid’s point, that the journey involves everything, from the obvious (like the quality of motions) to the obscure (the shoes you wear). While not every detail will impact the outcome, any detail might, even if it shouldn’t, and to ignore a detail that can be controlled so that it either eliminates a stumbling block or facilitates forward motion is foolish. Whatever can be made to serve the cause should be.

And the kid gets it.

In a comment to the kid’s post, however, a different story appears. First, Orin takes issue with both the cover letter message and the structure of the post:

The problem is that most articles editors say that cover letters are irrelevant and that they never read them. So if you’re asking us for the best cover letter, no responses may in fact be our “Zen” answer.

(Incidentally, you might also find that you get more of a response if the reader knows what the post is about in the first paragraph, above the break. If you make readers work their way through a lot of writing before you get to the point, relatively few readers will still be reading by then.)

Posted by: Orin Kerr | Aug 3, 2012 6:01:09 PM

So most articles editors say letters are irrelevant? Do any of them say that a well-honed, persuasive cover letter diminished the chance of an article being accepted? Then there’s no harm in writing a great letter, as the worst that can happen is that it will be ignored, while the best that can happen is that the articles editor will find it wonderfully compelling and desperately want to publish your article. And this is a problem?

In passing, I note that I read the post, even though I rarely get past the first paragraph of most posts at Prawfs.

The next comment was even more disturbing.

Unfunny joke and turgid post.

Sorry.

Posted by: Barbara Seville | Aug 3, 2012 8:08:14 PM

Initially, whether a “joke” is funny or not is a matter of personal opinion. Whoever Barbara Seville is (and I was unable to figure it out), to take the time to post a comment that she didn’t find the post funny is a monumentally douchy move. It wasn’t patently offensive. It wasn’t dangerous or destructive. It’s not to your liking? Who cares, you pompous, narcissistic fool.

But the real irony is calling the post “turgid.” Turgid is the stock in trade of academics, for whom pedantism is the air they breath. The post was no more turgid than pretty much anything else posted at a law prof blog, and given that it opened with a joke (even if unfunny to someone who thinks the blawgosphere owes her humor that matches her personal sensibilities), it’s about as unturgid as it gets.

Sadly, the kid responded to the second comment with acquiescence,

Agreed.

It’s in the nature of shaggy-dog stories to be shaggy, but the argument got woolly as well.

I’ll have more organized thoughts on legal academia’s neglect of juries, and the complexity of “fact-finding,” in a later post.

Posted by: Jim von der Heydt | Aug 3, 2012 9:14:46 PM

While it’s understandable that a “rising 3L” would be reluctant to tell a commenter to blow it out her butt, the time to decide whether your post is shaggy or woolly is before you hit publish, not afterward. There’s no shame in telling a pompous, narcissistic fool to get lost.

As to Orin’s comment, the kid did much better:

“relatively few readers will still be reading by then”Yes, those are the ones I was writing for. The others will ignore the post (with, apparently, one exception).

In the same way, editors that value the cover letter will value a good one, and editors that don’t will ignore one. It’s hard to see the merit in ignoring the former, even if there are fewer of them.

Scott H. Greenfield

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